Some of the questions involved in this case are by no means free-from doubt; but as they will doubtless be finally determined by the court of last resort, we think it sufficient to do little more than state the conclusions at which we have arrived.
The principal question arises upon the provisions of the will disposing of the residuary estate of the testator. It is claimed by the appellants that those provisions not only confer upon the executors a power of sale of the real estate of the testator not otherwise disposed of by his will, but that by necessary implication of law, they devise to the executors the fee of the land until the power shall be executed in the manner prescribed by the will.
The will very clearly creates a power of sale, and, in respect of the real estate in the State of New York, it imposes some restrictions upon the mode of executing the power. It also confers upon the trustees a discretion as to the time of making such sale, which extends through a period of three years after the death of the testator. The restriction as to the mode is found in the clause requiring the lands “to be sold at public sale in the city of New York, notice having first been given of the time and place of sale for three successive weeks, in four of the daily newspapers of the said city.”
The will very clearly gives authority to the executors, in view of *303the then present depression in real estate, to postpone the sale in their discretion for a period of time not exceeding three years beyond the date of the testator’s death. Such postponement was not imperative, but was left altogether to the discretion of the executors ; and the power of sale, if valid, would be well executed, if a sale had been made immediately after the executors had qualified, upon giving the prescribed notice, or at any other time within, the limit of three years. It is insisted that if the executors took a fee under the will, the conferring of authority to postpone the sale for three years in their discretion, created a state of things by which the power of alienation might be suspended for a period not limited to two lives in being, and that therefore the provisions of the will are void within the rule laid down in Hawley v. James (16 Wend., 134, 171, 172). But, to give weight to this objection, it is necessary first to establish that the executors were by the will vested with the fee of the real estate. This is claimed to be done by the following provision of the will: “ All rents, income or profits from my estate until it is finally distributed I direct my said executors to divide semi-annually among those to whom the bequests are made in the proportion that the amount of such bequest bears to the said net income or profit.”
This provision, although in terms broad enough to embrace all the estate of the testator, was we think, intended to apply only to so much of the estate as is embraced within the provisions of the residuary clause.
It is argued that under the authorities, this direction to distribute rents income and profits includes the power to exercise such rights of dominion over the real estate as necessarily requires that the fee shall be vested in the executors. Wherever that is the case the fee does so vest, as was settled in Brewster v. Striker (2 Comst., 19), Tobias v. Ketchum (32 N. Y., 319), Smith v. Scholtz (68 Id., 41), Garvey v. McDevitt (72 Id., 563), and cases there cited. But in each of these cases the will, in express terms, conferred authority and directed the performance of duties greater than those embraced in the will before us; and they were authorities and duties which could not be effectively exercised without the fee. In this case no authority or direction to rent or lease the *304property, to insure or keep in repair, or to pay rates and taxes, is expressly given. It is a mere naked direction to divide rents, income or profits; and it was doubtless given to express tbe intention of the testator, that the beneficiaries under the residuary clause should be entitled to the rents, income and profits accruing prior to the time of making the sale. A power given to executors to collect and divide rents of real estate, does not, in our judgment, necessarily imply a devise of the fee to them even where it is ■accompanied with a power of sale. The title of land may be vested by law iu one party, and the authority to collect rents for •some limited period be given to another, without at all affecting the fee, or necessarily preventing the exercise of the power of alienation.
As this provision does not impose upon the executors the duty to rent the lands and to collect rents it may perhaps be susceptible of the construction that they are to distribute only such rents as may, before the sale, happen to come into their hands.
In Post v. Hover (33 N. Y., 593), the court, speaking of that case, say : " Ample powers of management and a right to receive the rents and profits are indeed given; but these duties could be very well executed under a trust power .... To devise an estate by implication, there must be such a strong probability of an intention to give one, that the contrary cannot be supposed.” (Jarman on Wills, 465.) Devises by implication are sustainable only upon the principle of carrying into effect the intention of the testator; and unless it appears, upon an examination of the whole will, that such must have been the intention, there is no devise by implication. (Rathbone v. Dyckman, 3 Paige, 9.)
In that case it was held that the will conferred a trust power of management, the estate vesting, in the meantime in the grandchildren under an express devise to them; and the rule for the construction of such wills is given by Denio, Ch. J., in these words: “ If the language of a deed or will is susceptible of two constructions, and by adopting one of them it would be unlawful, while if the other were followed it would be valid, the latter interpretation should be given to it, ut res magis valeat qua/rn p&reat.”
*305It was upon the authority of this case that the court below held that the will before us did not devise the fee to the executors, of the lands in this State, embraced in the residuary clause. With much hesitation we have reached the same conclusion.
The sixth provision of the will was, we think, only intended by the testator to determine what kinds of indebtedness of his children, and of the Robert College, should be treated as advances. In •substance, it directs that none which does not appear upon the inventory or ledger, or books of account kept by him, or under his direction, charged as due to him, shall be considered as an indebtedness forming part of his estate. Or, in other words, he meant to say that only advances or actual indebtedness which had taken the forms prescribed, should be treated as advances to be deducted from the share or portion of his several legatees under the will. The indebtedness must be actual, and such as would form by rea•son of its character, a portion of the personal estate which could be collected by the executors ; an ] where it is of that character and appears in the manner prescribed, he directs that it be deducted ■from the share given by the residuary clause as a mode of producing equality among the objects of his bounty. We are unable to ■perceive that any serious question affecting the validity of the will ■can arise upon this provision.
It was held by the court below, that the question whether the bequest to Robert College is valid or not, is fully disposed of by -the decision of the Court of Appeals in the case of Wetmore v. Parker (56 N. Y., 450). Our impression is that this position is sustainable upon that authority.
It was of course error for the court below to find, as a legal conclusion, that the residuary real estate of the testator descended to the “ devisees ” named in his will upon his death, subject to the power’s therein conferred upon his executors. The devisees could take nothing by descent. The real estate descended to the heirs-at-law -of the testator, subject to such powers; and in this case the words “devisees” and “heirs-at-law” are not interchangeable terms. This conclusion, we think, was an accidental mistake in phraseology, which would at once have been corrected by the court below, on suggestion or motion. We shall direct this correction, in order that *306there may be no embarrassment hereafter on a merely technical error.
No appeal seems to have been taken from the allowances made, although they exceeded the statutory limitation, and so far as the excess is concerned, were given without authority.
■ The judgment should be affirmed, with costs of the appeal to all parties out of the fund.